Ex Parte Fosburgh et al

Patent Trial and Appeal Board

Apr 26, 2017

13095673 (P.T.A.B. Apr. 26, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/095,673 04/27/2011 Bryn Allen Fosburgh 0420.09 3089
112664 7590 04/28/2017
Trimble Navigation Limited
Swanson & Bratschun, L.L.C.
8210 Southpark Terrace
Littleton, CO 80120
EXAMINER
TARKO, ASMAMAW G
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
04/28/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
efspatents @ sbiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRYN ALLEN FOSBURGH, MARK EDWARD NICHOLS,
PER MARTIN HOLMGREN, and NILS THOMAS LARS SON
Appeal 2016-003070
Application 13/095,6731
Technology Center 2400
Before JASON V. MORGAN, SHARON FENICK, and
AARON W. MOORE, Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—12, 14—16, and 18—29. (Appeal. Br. 2.) Claims 13 and
17 are cancelled. (Id.) We have jurisdiction under 35 U.S.C. § 6(b)(1).
We affirm-in-part.
Invention
Appellants’ invention relates to tools and techniques for monitoring
railway track geometry via photogrammetry. (Spec. Abstract.)
1 Appellants identify Trimble Navigation Limited as the real party in
interest. (Appeal Br. 1.)
Appeal 2016-003070
Application 13/095,673
Exemplary Claims
Claims 1 and 14, reproduced below with certain limitations
emphasized, are exemplary:
1. A method, comprising:
capturing, with a first image capture device mounted on a
mobile platform configured for movement along a
railway comprising one or more rails, a series of position
reference images as the mobile platform travels along the
railway;
identifying, in at least one position reference image, a visual
target positioned proximate to the railway;
determining a distance from the mobile platform to the visual
target;
calculating, at a computer system, a location of the mobile
platform on the railway, based at least in part on the
determined distance from the mobile platform to the
visual target;
capturing, with a second one or more image capture devices,
one or more railway images of the one or more rails;
performing, at the computer system, photogrammetric analysis
on at least one of the one or more rail images to identify
a rail configuration of the railway, wherein the railway
comprises a plurality of rails and the photogrammetric
analysis on at least one of the one or more rail images
comprises identifying, in the at least one image, a
location of a first edge of a first rail',
associating the rail configuration with the location of the mobile
platform on the railway; and
storing, in a data store, a data record comprising data about the
rail configuration and the associated location of the
mobile platform.
14. The method of claim 1, wherein the rail configuration
comprises an inter-rail spacing between two or more of the
plurality of rails.
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Application 13/095,673
Rejection
The Examiner rejects claims 1—12, 14—16, and 18—29 under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Davenport et al. (US 2006/0244830
Al; pub. Nov. 2, 2006) (“Davenport”) and Rauch (US 2008/0195257 Al;
pub. Aug. 14, 2008). (Final Action 3—5.)
Issues
A. Did the Examiner err in finding that the combination of Davenport
and Rauch teaches or suggests “performing . . . photogrammetric analysis on
at least one of the one or more rail images . . . wherein . . . the
photogrammetric analysis on at least one of the one or more rail images
comprises identifying, in the at least one image, a location of a first edge of a
first rail,” as recited in claim 1?
B. Did the Examiner err in finding that the combination of Davenport
and Rauch teaches or suggests identifying a rail configuration which
“comprises an inter-rail spacing between two or more of the plurality of
rails,” “comprises an elevation of at least one of the plurality of rails,” or
“comprises an elevation of at least one of the plurality of rails,” as recited in
claims 14, 15, and 16 (respectively), or “calculating a distance between the
rails” as recited in claim 18?
Analysis
A: Claims 1—12 and 19—29— “the photogrammetric analysis . . .
comprises identifying... a location of a first edge of a first rail ”
Preliminarily, with respect to claim 1, we address Appellants’
argument that the Examiner has failed to establish a prima facie case of
unpatentability. (Appeal Br. 15, 19, 26, 28; Reply Br. 2, 12, 13, 16.) A
prima facie case shifts the burden of argument to the applicant. See In re
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Application 13/095,673
Jung, 637 F.3d 1356, 1362—63 (Fed. Cir. 2011) (addressing an Examiner’s
notice requirement under 35 U.S.C. § 132). To present aprima facie case,
the Examiner needs to provide the applicant with information sufficient to
address the rejection. Id. Our reviewing court found in Jung that “the
examiner’s discussion of the theory of invalidity . . . , the prior art basis for
the rejection . . ., and the identification of where each limitation of the
rejected claims is shown in the prior art reference by specific column and
line number was more than sufficient to meet this burden.” Id. at 1363. We
similarly find the Examiner has met the burden in the case before us. (See
Final Action 3—4.) Therefore, the burden shifts to Appellants to rebut the
Examiner’s prima facie case by distinctly and specifically pointing out the
supposed errors in the Examiner’s rejection, as well as the specific
distinctions believed to render the claims patentable over the prior art, and
we treat the Appellants’ arguments regarding Claim 1, which allege such
errors in the rejection and distinctions over the prior art, as such a rebuttal.
The Examiner finds that photogrammetric analysis comprising
identifying a location of a first edge of a first rail is taught or suggested in
the combination of Davenport and Rauch. (Final Action 2—3, citing
Davenport || 38—42, 57, 63, 71 and Fig. 5 and Rauch || 129-137, Figs. 5,
12.) The Examiner finds that Davenport generally teaches photogrammetry
to survey and determine the location of objects, and that Davenport’s
teachings regarding using photogrammetry to determine railroad track
condition would teach or suggest to one of ordinary skill in the art that
Davenport’s photogrammetry would monitor, for example, “rusting,
blockage, [and] rail spacing.” (Answer 12—13.) Additionally, the Examiner
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Application 13/095,673
finds that Rauch teaches the use of photogrammetry to identify the location
of a first edge of a first rail. (Final Action 2—3.)
We agree that one of ordinary skill in the art would find the
determination through photogrammetry of the location of a first edge of a
first rail obvious in view of the combination of the teachings of Davenport
and Rauch. Davenport discusses “sensing means 142” to generate a video
signal (Davenport 138) which is processed so that track conditions are
rendered discemable {id. 139). Rauch teaches photogrammetry (Rauch
11 133, 137) which is used to detect changes including “changes in quality
of the track, e.g. deformations” {id. 1134). Appellants argue that in
Davenport, “there is no teaching or suggestion of what particular track
conditions are being monitored, or even that any photogrammetry might be
used to monitor track conditions.” (Reply Br. 10; see also Appeal Br. 23—
24.) However, Appellants do not address Rauch’s teachings of checking for
track deformations, other than in a conclusory fashion. (Appeal Br. 25—26.)
We are not persuaded of error in the finding that the combination of
Rauch and Davenport teaches photogrammetric analysis of track conditions
such as deformations, and we agree with the Examiner that one of ordinary
skill in the art would find that the monitoring of track conditions (such as
deformation, as discussed in Rauch) through photogrammetry (which “infers
the positions of features in captured images” (Spec. 1 55)) would teach or
suggest to one of ordinary skill in the art the identification of a location of an
edge of a rail.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1 and claims 21—24, argued on the same basis (Appeal Br. 19).
Claims 2—12, 19, 20, and 25—29 are not separately argued. {Id. at 27.)
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Application 13/095,673
We, therefore, affirm the Examiner’s rejections of claims 1—12 and 19—29
under 35 U.S.C. § 103(a) as unpatentable.
B: Claims 14—16 and 18
While in rejecting claims 14—16 and 18 in the Final Action (at 5) the
Examiner refers only to the rejection of Claim 1, in the Answer the
Examiner presents additional citations to Davenport (|| 33, 50) to support
the rejections of these claims. (Answer 5.)
However, paragraph 33 of Davenport deals with precisely locating a
train on one of a plurality of tracks and does not discuss identifying rail
spacing. Paragraph 50 of Davenport only discusses the observation and
recording of “environmental and operational parameters” including “track
conditions.” This paragraph does not indicate, nor does the Examiner
explain, how track configuration (as opposed to track condition: “damage,
breakage or other dangers” (Answer 14)) is observed or what teaching or
suggestion in the prior art or the knowledge of one of ordinary skill includes
identifying track configuration by identifying an inter-rail spacing between
two or more rails, as in claim 14 and similarly recited in claim 18; a slope
between two or more rails, as in claim 15; or an elevation of a rail, as in
claim 16. While the Examiner finds that “dangerous inter rail spacing”
would be a condition of the track (Answer 14), we agree with Appellants
(Reply Br. 14) that the Examiner has not shown how detecting damage or
other dangerous “track conditions” would necessarily cover these claims
relating to “track configuration.”
Therefore, we find Appellants’ arguments regarding the disputed
limitations to be persuasive. Accordingly, we do not sustain the Examiner’s
obviousness rejections of claims 14—16 and 18.
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Application 13/095,673
DECISION
We affirm the Examiner’s decision rejecting claims 1—12 and 19—29.
We reverse the Examiner’s decision rejecting claims 14—16 and 18.
Pursuant to 37 C.F.R. § 1.136(a)(l)(iv), no time period for taking any
subsequent action in connection with this appeal may be extended.
AFFIRMED-IN-PART
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